Date: 19980216
Docket: T-237-96
BETWEEN:
RANDALL WILLIAM CREED,
Applicant,
- and -
THE SOLICITOR GENERAL OF CANADA, and
THE ATTORNEY GENERAL OF CANADA,
Respondents.
Date: 19980216
Docket: T-2319-95
BETWEEN:
RANDALL WILLIAM CREED,
Applicant,
- and -
THE SOLICITOR GENERAL OF CANADA, and
THE ATTORNEY GENERAL OF CANADA,
Respondents.
REASONS FOR ORDERS
REED, J.:
[1] The applicant is no longer in segregation; he is no longer at Edmonton Institution; he is no longer in the province. The judicial review applications are therefore moot. The decision in Zubi v. Her Majesty the Queen (1993), 71 F.T.R. 168, at 170, does not stand for the proposition that it is necessary to pursue a claim for damages by first completing a judicial review proceeding. The Zubi decision held that when part of the relief being sought was a declaration that a tribunal or board decision was invalid, that declaration must be sought by way of judicial review. Prior to the 1990 changes to the Federal Court Act, a declaration had to be sought by way of an action (a statement of claim). A declaration that a board or tribunal decision is invalid is similar to an order quashing that decision. Thus, it was somewhat inconsistent to require that a request for an order declaring a decision invalid was to be made by way of an action, while an order to quash the same decision could only be given in the context of a judicial review proceeding. Consequently, the two were made subject to the same procedural process - a judicial review application.
[2] The Zubi decision dealt with a case in which an inmate had been transferred from minimum to medium security facilities. The inmate brought a statement of claim seeking a declaration that the transfer decision was invalid as well as damages. Mr. Justice Cullen wrote: "... the proper course of action for the plaintiff would be to bring an application for judicial review pursuant to ss. 18 and 18.1, and then, if successful, bring an action for damages." This is not a statement, however, that in order to obtain damages one must first commence a judicial review application. An action for damage has always been and remains an independent course of action. Mr. Justice Cullen's remarks only relate to the situation in which there is an existing transfer (or segregation) decision that it is sought to be set aside, such that, if granted, the individual is transferred back to the position he was in before the decision was made. That remedy must be sought by judicial review. In the present case, the applicant, as noted, is no longer in segregation, he is no longer in Edmonton Institution, he is no longer even in the province of Alberta. Thus, any finding of invalidity or any quashing of the segregation or transfer decisions would be pointless. The passage of time has rendered that relief moot.
[3] The applicant has filed a statement of claim seeking damages for wrongful imprisonment. That is the appropriate course of action for the applicant to pursue.
[4] In the circumstances, the applications have been dismissed.
"B. Reed"
Judge
Edmonton, Alberta,
February 16th, 1998.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-237-96
T-2319-95
STYLE OF CAUSE: Randall William Creed
v. The Solicitor General of
Canada and The Attorney
General of Canada
Randall William Creed
v. The Solicitor General of
Canada and The Attorney
General of Canada
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: February 16th, 1998
ORDER AND REASONS FOR ORDER BY: Reed, J.
DATED: February 16th, 1998
APPEARANCES:
Charles B. Davison for the Applicant
Brad Hardstaff
Department of Justice for the Respondents
SOLICITORS OF RECORD:
Charles B. Davison
Edmonton, Alberta for the Applicant
George Thomson
Deputy Attorney General of Canada for the Respondent
Ottawa, Ontario